Age discrimination cases

Seldon v Clarkson Wright & Jakes[2014] IRLR 748: the EAT (following the Supreme Court’s remission of the case to the Employment Tribunal) upheld the Tribunal’s finding that the chosen CRA of 65 in a solicitors’ practice was reasonably necessary and lawful.

Chief Constable of West Midlands Police v Harrod & Others [2015] IRLR 790: Rule A19 of the Police Pensions Regulations 1987, which allowed for the (enforced) retirement of police officers who met certain criteria, disadvantaged officers over the age of 48. However, having regard to the Government’s demand to realise a 20% cut in the forces’ budgets, the use of this provision was found to be justified by the EAT.

Cockram v Air Products Plc [2015] UKEAT/0122/15/LA: The key issue between the parties was whether the respondent could justify having a rule, as part of its Long Term Incentive Plan (LTIP), that the claimant was not entitled to unvested options because he had not reached the age of 55 upon the termination of his employment. The employer accepted that it had treated the claimant less favourably because of age but argued that the discrimination was justified. The Tribunal accepted this argument, holding: “We accept that limiting the advantage enjoyed by one age group over another is a legitimate social policy aspect of intergenerational fairness. Our conclusion is that the Respondent's aim is a legitimate aim.” The claimant appealed. The EAT allowed the appeal on the basis that the Tribunal had not given sufficient reasoning for its conclusion; that the aim of the rule included intergenerational fairness; nor had it explained what that intergenerational fairness consisted of. Accordingly, the claim was remitted to a new Tribunal for reconsideration.

Braithwaite v HCL Insurance BPO[2015] ICR 713: The employer, owing to significant business pressures, applied a PCP that in order to remain employed with the company, employees had to agree to a new contract with new terms and conditions. Although this PCP indirectly discriminated against older workers (as workers in the 38 – 64 age range were more likely to lose their existing contractual rights), the Tribunal held that it was objectively justified. The employer had a legitimate aim, namely reducing staff costs to ensure its future viability and to have in place a market-competitive, non-discriminatory set of terms and conditions; and its approach was a proportionate means of achieving that aim. The EAT upheld the Tribunal’s judgment.

Willey & Sharpe v England & Wales Cricket Board Limited[2015] ET Case Numbers 2201406/2014 and 2202407/2014: the Tribunal concluded that the ECB’s policy of requiring first class cricket umpires to retire at 65 was a proportionate means of achieving the legitimate aim of intergenerational fairness/succession planning. Regarding this aim, the Tribunal noted that a retirement age of 65 “achieves certainty and predictability; there is no point in having a vacancy unless it is predictable over a period of years thus allowing aspiring FCUs to plan and retain the hope of achieving their goal within a set number of years.” In reaching its decision, the Tribunal took into account the particular nature of the ‘bottleneck’ at first class umpire level, where "a small group of 25…sit at the top of the tree" and "no one has ever known a FCU to retire before the compulsory retirement age."